Lawrence Robinson et al v. Chapel Haven, Inc. (2010)

CONSOLIDATED MEMORANDUM OF DECISION RE MOTION TO STRIKE COUNTERCLAIMS (No. 136) & PLAINTIFFS' MOTION TO STRIKE SPECIAL DEFENSES (No. 185).

The dispositive question raised by the consolidated motions to strike now before the court is whether a document entitled “WAIVER AND INDEMNITY AGREEMENT” (“Waiver”), executed by the parties on January 6, 2006, has legal viability in this negligence and recklessness action against the defendant.   For the reasons stated below, the answer to this question is No.

Because the claims before the court arise in the context of a motion to strike, the facts alleged in the revised complaint are assumed to be true for purposes of these motions.   The Waiver itself is incorporated by reference in the special defenses and counterclaims sought to be struck and has, in addition, been attached to the submissions of both parties.   Under these circumstances, the parties agree that the text of the Waiver is fully before the court.

This action was commenced in 2008 by the plaintiffs, Lawrence and Roberta Robinson (“Robinsons”), against the sole defendant, Chapel Haven, Inc. (“Chapel Haven”).   The Robinsons are the parents and legal guardians of the alleged victim, Michael Robinson (“Michael”), a person with developmental disabilities.   Pursuant to a contract between the parties, Michael was placed in a residential program operated by Chapel Haven between 2006 and 2007.   During this time, Michael was “emotionally, physically and sexually abused and assaulted” by a third party residing in the same facility.   These assaults included fellatio and attempted anal penetration.   The revised complaint consists of two counts.   The First Count claims negligence on the part of Chapel Haven.   The Second Count claims recklessness.

On March 23, 2009, Chapel Haven filed its special defenses and counterclaims.   Each of these claims is expressly grounded on the Waiver.   The special defenses assert that the Waiver releases Chapel Haven from the claims asserted in the revised complaint.   The Counterclaims assert indemnification pursuant to the Waiver.

The motions to strike now before the court were filed on April 2, 2009 (No. 136) and April 7, 2010 (No. 185).   No. 136 seeks to strike the counterclaims, while No. 185 seeks to strike the special defenses.

As mentioned, both the special defenses and counterclaims, on the one hand, and the motions to strike, on the other, incorporate the Waiver by reference.   The Waiver was signed by the Robinsons on January 16 2006.   It has the curious subtitle of “Individual Choice Of Sexual Activity.”   The text of the Waiver is as follows:

I/WE, the undersigned, parent, guardian and/or next friend of the above named individual, an applicant for admission to residence at CHAPEL HAVEN, INC., for and in consideration of the many and varied benefits to be conferred upon said individual by participation in Individual Choice of Sexual Activity do for myself, and as parent, guardian and next friend to said individual, FOREVER RELEASE and DISCHARGE the said CHAPEL HAVEN, INC. And its directors, their agents or employees, and all of its members individually, their heirs, administrators, executors, successors and assigns, from any and all claims, demands, actions and causes of action which I/WE as parent, guardian and/or next friend have or may have by reason of any injury, illness, disability or condition of any kind, which may be hereafter sustained by said individual in consequence of his/her participation in Individual Choice of Sexual Activity and/or any event or activity thereto related.

I/WE, the undersigned hereby further agree to INDEMNIFY AND SAVE HARMLESS the said CHAPEL HAVEN, INC., its directors, their agents or employees, and all of its members individually, their heirs, administrators, executors, successors and assigns, against any and all claims for damages, costs and expenses, brought by or on behalf of said individual, arising out of his/her participation in the above mentioned Individual Choice of Sexual Activity and/or any event or activity thereto related.

The motions were argued in a consolidated hearing on July 21, 2010.

Although motions to strike necessarily address pleadings rather than evidence, in this case the pleadings in question incorporate the Waiver by reference.   Each party has submitted the Waiver to the court.   Although the circumstances in which the Waiver was signed have not been established, the text of the Waiver is not in dispute.   Under these circumstances, the court appropriately can address the legal sufficiency of the text contained within the four corners of the Waiver itself.

On this point, Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003), is dispositive.  Hyson addressed the validity of a release from liability executed by a user of a snowtubing facility.   Noting that “[t]he law does not favor contract provisions which relieve a person from his own negligence,” id., at 643, the Court endorsed “a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly,” id., at 642.  “Because the release signed by the plaintiff in [Hyson ] did not expressly provide that, by signing it, she released the defendant from liability for damages resulting from its negligence,” the release at issue in that case was ineffective as a matter of law.  Id., at 644.

Our Supreme Court has subsequently explained that, when the Hyson standards are satisfied, the question whether “a well drafted exculpatory agreement purporting to release a [defendant] from prospective liability for personal injuries sustained as a result of the [defendant's] negligent conduct” turns on “the totality of the circumstances of any given case against the backdrop of current societal expectations.”  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 326, 330, 885 A.2d 734 (2005).   This “analysis is guided, but not limited,” by the factors set forth in Tunkl v. Regents, 383 P.2d 441, 445-46 (Cal.1963), 276 Conn., at 330.   Accord, Reardon v. Windswept Farm, LLC, 280 Conn. 153, 160, 905 A.2d 1156 (2006).   It would be difficult to consider the Tunkl factors on a motion to strike, and the court does not do so here.   But the Tunkl factors are considered only if the party claiming protection of the release in question has met the initial threshold of satisfying the Hyson standards.   In this case, as will be seen in a moment, the Hyson standards-i.e. a well drafted exculpatory agreement purporting to release the defendant from liability for personal injuries sustained as a result of the defendant's negligent conduct-have not been satisfied.   This determination can be made entirely by consideration of the text contained within the four corners of the document in question.   Since the document in question here has been incorporated by reference in the pleadings in question, the Hyson sufficiency of the document can be addressed in the context of a motion to strike.

The Waiver, quoted in full above, does not satisfy the requirements of Hyson.   A person of ordinary intelligence, reading the Waiver, reasonably could believe that he or she was releasing the defendant only from liability for damages caused by purely consensual sexual behavior.   Coerced sexual behavior-like the behavior alleged in the revised complaint-and, particularly, coerced sexual behavior brought about by the negligence (or recklessness) of the defendant are unmentioned.   As Hyson explains, “A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights.   Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost.”  265 Conn., at 643.

Because the Waiver invoked by the special defenses and counterclaims at issue here does not expressly provide that, by signing it, the Robinsons release Chapel Haven from liability for damages resulting from its negligence, the motions to strike must be granted as to the special defenses and counterclaims insofar as they relate to the First Count (claiming negligence).  Hyson establishes that, “[i]ndemnification agreements give rise to the same issues and are interpreted in a similar manner.”  265 Conn., at 642.

The legal insufficiency of the special defenses and counterclaims insofar as they relate to the Second Count (claiming recklessness) is, comparatively speaking, even clearer.   Just as the Waiver fails to expressly mention negligence, it also fails to expressly mention recklessness.   In this regard, as well, the Waiver fails to meet the requirements of Hyson.   In any event, Hanks makes it clear that, for reasons of public policy, even well drafted exculpatory agreements cannot insulate defendants from liability for conduct rising to the level of recklessness.  276 Conn., at 337.

The motions to strike are granted.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.